ACS Supreme Court review highlights, previews significant cases

September 24, 2012

By Mima Mohammed

Looking forward to the first Monday in October, when the U.S. Supreme Court’s new term begins, an expert panel at the University of Pennsylvania Law School on Sept. 20 reviewed highlights from the Court’s last term and previewed the most significant cases on its current docket.

Penn Law Professor Seth Kreimer, a constitutional scholar, moderated the panel, which took place in Fitts Auditorium and included discussion of the landmark Affordable Care Act decision and the important decision involving a controversial Arizona immigration law.

Sponsored by the Penn Law chapter of the American Constitution Society, the event delved into what the panelists agreed was an extraordinary Supreme Court term.Panelists included Cecillia Wang, head of the ACLU Immigrant Right’s project; Patricia Millett, a former Assistant to the Solicitor General at the U.S. Department of Justice who currently heads Akin Gump’s Supreme Court practice group; John Elwood, a former Assistant to the Solicitor General at the U.S. Department of Justice and currently an attorney in the D.C. office of Vincent and Elkins; and Kevin Russell, a former clerk for Justice Stephen G. Breyer.

Wang discussed Arizona v. the United States, involving Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act (often referred to as Arizona SB 1070). At the time of passage the law was the broadest and strictest anti-illegal immigration measure in recent U.S. history. At issue was whether the law usurped the federal government’s authority to regulate immigration laws and enforcement.

“In this decision, the Supreme Court refuted some radical arguments that the state of Arizona made but also left the door open,” Wang said.

The Court nullified sections of the law making it a crime to be in Arizona without legal papers, making it a crime to apply for or get a job in the state, or allowing police to arrest individuals who had committed crimes that could lead to their deportation. It left intact — but subject to later challenges in lower courts — a provision requiring police to arrest and hold anyone they believe has committed a crime and whom they think is in the country illegally, and holding them until their immigration status could be checked with federal officials.

The second panelist, Kevin Russell, spoke about a case entitled Kiobel v. Royal Dutch Petroleum Co. The case involved whether a corporation can be liable under the Alien Tort Statute for alleged complicity in human rights abuses by a foreign government. “Basically, when can you sue someone in the United States for something that happened in another country,” Russell said.

“The first question which Justice Alito asked in oral arguments was, what interest does the United States have in a dispute of a Nigerian individual and a Dutch company with events that happened in Nigeria. A lot of the justices were unhappy with the case and this use of the statute,” said Russell.

Nigerian plaintiffs alleged that the defendant company collaborated with the Nigerian government to commit extrajudicial killing, torture, crimes against humanity, and arbitrary arrest and detention. After hearing arguments on February 28, the Court in March ordered Kiobel reargued. The Court seeks opinions about the extent of the 1789 Alien Tort Statute, which gives foreigners a right to sue in U.S. courts. The case is scheduled to be reargued on October 1. The ruling, Russell said, will have important implications as to how the law is used by plaintiffs’ lawyers as a way of hailing multinational corporations into U.S. courts for torts committed by others where the corporations did business.

Panelist Patricia Millett summarized Fisher v. University of Texas, an upcoming case concerning the affirmative action admissions policy of the University of Texas at Austin. The case, brought by undergraduate Abigail Fisher in 2008, asks that the court either declare the admissions policy of the University inconsistent with or entirely overrule Grutter v. Bollinger, a 2003 case in which the Supreme Court ruled that race could play a limited role in the admissions policies of universities.

An overruling of Grutter could end affirmative action policies in admissions at U.S. public universities, Millett said. “Texas is now one of the states that is majority minority, fifty percent of the population is not white. The impending cases will look at whether they can promote additional diversity and do it through a complicated process where race is part of one factor of who gets admitted,” she explained. She also pointed out that affirmative action cases such as Fisher beg the question, “When is it ever diverse enough?”

Penn Law’s ACS Chapter was formed in 2001 with the goal to help revitalize and transform contemporary debate about the role of law in society with a progressive vision of the Constitution.